The Court of Appeal has rejected an appeal by a man acquitted of rape as well as his argument that the law of malicious prosecution should be changed in order to bring it into line with Article 5 of the European Convention on Human Rights, the right to liberty.

In 2000, Kirk Moulton spent Christmas in jail due to administrative errors by the police. However, unlike in other jurisdictions it is not possible in England to sue the police for damages for negligence. Claims for 'malicious prosecution' are possible, but they are notoriously difficult to prove as the aggrieved person has to show the police acted with malice. Mr Moulton's lawyers argued that the lack of a remedy for police maladministration meant that English law ran contrary to human rights law. But the court, whilst showing sympathy, rejected the argument. As a result the bar for claims against the police remains dauntingly high.

The claim for malicious prosecution

On 17 September 2000, Kirk Moulton was arrested by West Midlands police on charges of raping and assaulting 16-year-old woman. He denied rape and assault but admitted having had consensual intercourse. He was charged and remanded in custody where he remained until the matter came before the Crown Court. The prosecution offered no evidence and was ultimately discharged on 3 January 2001.

In order to prove malicious prosecution, a person has to show that first, the police had not had reasonable and probable cause to pursue the prosecution and second, that they had acted with malice, that is from a motive other than a legitimate desire to bring the person to justice.

The trial judge in the first hearing of the case held that the appellant had failed to show either. He also rejected the claim for misfeasance in public office. He was, however, critical of the thoroughness of the investigation and the lack of expedition with which the police had acted. Mr Moulton appealed to the Court of Appeal.

No malice, no claim, no human rights?

The test for malice in English law has classically been a very difficult one to satisfy, and Mr Moulton was always facing a difficult task in convincing the Court of Appeal that there was malice in his case.

Cherie Booth QC, acting for Mr Moulton, argued that there was malice under the current definition but, in any event, the court ought to lower the threshold to show malice to cases of malicious prosecution in order to comply with article 5(1)(c) of the European Convention on Human Rights (ECHR), which states:

(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

… (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence…

The problem, Ms Booth argued, was that the English definition of malice provides no redress for victims of investigatory or prosecutorial maladministration. This is not the case in all jurisdictions. For example, in the United States, the burden of proving malice is reversed (i.e., it becomes the polices' job to prove there was no malice, rather than the claimant's to prove there was) where there has been a holding of no reasonable and probable cause.

No breach of human rights

The judgment was given by Lady Justice Smith, who said that she would "entirely agree with the judge's criticisms of the police. There was a general lack of direction and proper management of this investigation" (para 43). The criticisms focused on the end of November 2000, when evidence was available to exonerate Mr Moulton. Due to a number of procedural but not malicious errors, he ultimately remained in custody until early January 2001.

The judge remarked that

"If in this country it were possible to sue for negligent police conduct, it may well be that the appellant would have been able to recover damages. However, it is not" (43)

She also said that she could "see the good sense" in the US system (49). However, she finally held that she was not convinced that Article 5 suggested that there is any need for the burden on the claimant to prove malice to be reduced. She concluded:

Despite the attractive way in which Miss Booth advanced her submissions, I cannot see how article 5 can help her. Miss Booth cannot contend that the appellant's article 5 right had been infringed. He had been arrested and deprived of his liberty for the purpose of bringing him before a competent legal authority on suspicion of having committed an offence and in accordance with a procedure prescribed by law. Reasonable suspicion is a low threshold; in this jurisdiction it is the threshold which justifies arrest. A higher threshold is required before the commencement of a prosecution by preferring a charge. It seems to me that the wording of article 5 imposes a rather lower requirement on the authority which deprives the individual of his liberty than do the present requirements of the tort of malicious prosecution. (52)

Still too high a bar?

Mr Moulton lost his appeal and, more importantly in terms of the wider significance of the case, the Court of Appeal declined to lower the threshold in respect of proving malice in malicious prosecution cases in order to bring English law into line with other jurisdictions and (in Mr Moulton's view) its obligations under Article 5 of the European Convention.

The outcome of the judgment means that claims against the police in cases of maladministration are still unlikely to succeed. The police argue that if it were easier for people to sue them, they would spend more time litigating than policing. That may be so, but it does mean that there are few potential remedies for those who have been aggrieved, save for the limited ones available through the Independent Police Complaints Commission.

The Court of Appeal did elaborate on part of the test for malicious prosecution, stating that "If the court holds that there was no honest belief in the validity of the prosecution, the court may well be ready to infer that the prosecutor has proceeded from some motive other than a legitimate desire to bring the accused to justice" (52). It is arguable that this statement places a greater burden on the police in the future to show that their motive in bringing a prosecution was, in fact, an honest one.